The Issue Whether the Respondent violated certain provisions of Chapter 509, Florida Statutes, and Chapter 61-C, Florida Administrative Code, as alleged in the Administrative Complaint.
Findings Of Fact Based on the evidence and testimony of the witness presented and the entire record in this proceeding, the following findings of fact are made: On February 15, 2001, Angela Carragher, Safety and Sanitation Supervisor, conducted an initial inspection of Respondent. Ms. Carragher conducted re-inspections of Respondent on February 16, 2001, and March 5, 2001. During the inspections, Ms. Carragher observed numerous rodent droppings in the backside storage closets, as well as in the food storage area on the shelves. Rodent droppings are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. Ms. Carragher observed moldy vegetables in the walk- in cooler. Moldy vegetables in the walk-in cooler are a critical violation because spoiled food is not safe to serve to a customer. Ms. Carragher observed raw beef stored over some lettuce and cheese that were in the walk-in cooler. Raw beef stored over ready-to-eat foods like lettuce and cheese are a critical violation because raw beef can have bacteria, which could contaminate or cross-contaminate those ready-to-eat items. Ms. Carragher observed that Respondent did not have proof of a certified food manager at the facility. The certified food manager is the person who has the responsibility to ensure that all of the food workers are trained in food safety and proper food handling and that the facility is following all requirements of the Food Code. Proof that a certified food manager at the facility is critical because, otherwise, there is no way to know if somebody is supervising and overseeing the establishment. Ms. Carragher observed that the fire suppression system was not currently tagged and certified and that an emergency light did not light when tested. The fire suppression system is required to be inspected and certified every six months. The fire suppression system was last inspected in March 2000. A certified and tagged fire suppression system is critical because in the event of a fire, the system may fail to automatically discharge and put the fire out. Ms. Carragher observed an unlabeled spray bottle containing some unidentifiable green chemical solution. Restaurants often use a number of different chemicals in their kitchen, such as window cleaners, degreaser, and sanitizers. An unlabeled spray bottle is a critical violation because an employee may mistakenly use a wrong chemical on the wrong surface, which could create a contamination hazard for food items. Ms. Carragher observed dried food debris on the slicer and inside the three-door, reach-in cooler. Dried food on the slicer and cooler surfaces is a violation because dried food can harbor bacteria which can potentially contaminate fresh food. Ms. Carragher observed that the heat lamp bulbs on the cook's line were not shielded. Unshielded heat lamp bulbs are a violation because should a lamp break, the shattered glass may fall into the food to be served causing a physical hazard. Ms. Carragher observed that the ice scoop was stored on the top of the ice machine and not on a clean surface. The ice scoop is used to scoop the ice that is going to be used for beverages and food. The ice scoop stored on the top of the ice machine is a violation because the top of the machine contains dust and debris, which may cause potential physical contamination. Ms. Carragher observed holes in the walls in the backside storage closet, and grime accumulated on the floor underneath the sink and on the walls in the dishwashing area. Holes in walls and accumulated grime on sinks and walls are a violation because the dirt may contaminate clean dishes and holes may permit access by vermin. Ms. Carragher observed that the gasket on the door on the reach-in cooler was torn. A torn gasket is a violation because the gasket forms a barrier between the outside and inside of the cooler preventing hot air from the kitchen from getting into the cooler. It also creates a place where mildew can grow and contaminate food. Ms. Carragher observed that the carbon dioxide tank in the kitchen was not secured. A carbon dioxide tank which is not secured is a safety violation because a pressurized tank may be propelled violently by the compressed gas if the valve is damaged, hurting people in the restaurant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered for suspension of Respondent's license until he pays a fine in the amount of $2,000. DONE AND ENTERED this 21st day of December, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Lewis Pace Ramada Inn Restaurant 20349 North U.S. Highway 27 Clermont, Florida 34711 Manohar Jain Ramada Inn Restaurant 4800 South Apopka Vineland Road Orlando, Florida 32819 Susan R. McKinley, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent Emerald Plaza West, Inc., holds license No. 23-12623-H, issued by petitioner. Miami Garden West Apartments consists of 31 or 38 (T. 79) apartments in several buildings located on Northwest 183rd Street in Miami, Florida. E.J. Catogas, president of Emerald Plaza West, Inc., was also president of the general contracting firm that built the complex in 1973. Two years or so before the hearing, Emerald Plaza West, Inc., became the owner of Miami Garden West Apartments as a result of a foreclosure action. By the time of the hearing, the apartments had been sold and belonged to Nicky Limited, but respondent Emerald Plaza West, Inc., continued to manage the property under contract to the new owner. On April 11, 1980, Rogers Brown, an investigator in petitioner's employ, visited Miami Garden West Apartments. He found less fire extinguishers than the required two per building, and, of the fire extinguishers he found, some were in need of recharging. He discovered a refrigerator in need of repair in apartment No. 2 at 2250 Northwest 183rd Street, two toilets near the swimming pool in need of repair, and several screens in need of replacement, namely, screens on the east and west sides of apartment No. 2 in building 18257; on the east side of apartment No. 3 and in the kitchen of the same apartment', and on the east and rear sides of apartment No. 1 in building No. 18257; front and rear screens were missing in building 18255, and on the front and north sides of apartments Nos. 2 and 3 of building 18251. The inspector also found roaches and rodents on the premises. An employee of respondent lives two blocks from the apartment complex and helps with the repairs but is unable to speak English. Since he was unwilling to sign Inspector Brown's inspection report, Mr. Brown caused the report to be mailed to respondent, certified mail. Mr. Catogas refused the letter, however. Rogers Brown personally furnished E.J. Catogas copies of inspection reports on November 19, 1980. 1/ On May 15, 1980, personal service of the report had been effected on the wife of the employee who lived nearby. When Rogers Brown again inspected Miami Garden West Apartments, on June 9, 1980, he found some buildings still lacking fire extinguishers altogether, and found no fire extinguisher that was not out of date. There were only three or four fire extinguishers in the entire complex, and each needed recharging. Without contradiction, Mr. Catogas testified that the fire extinguishers are sometimes stolen. According to the same witness, the apartments are located in a fairly nice neighborhood and all the fire extinguishers were in place and operable on September 3, 1981. Petitioner's Mr. Brown found all the fire extinguishers in good order when he inspected on April 29, 1981. He had advised respondent that some of the fire extinguishers were in need of recharging on February 19, 1981. When Mr. Brown inspected on June 9, 1980, the roof on the southeast side of apartment No. 2 in the building at 2250 183rd Street leaked. Water was also leaking through a windowsill, and the refrigerator was not working in that apartment. At the time, apartment No. 2 at 2250 Northwest 183rd Street was occupied by Fannie Lindsey, whose maiden name was Fannie Hogan. During one period, her toilets overflowed, two to three times a week, for a reason she did not understand. Ms. Lindsey brought a lawsuit against respondent seeking changes in the conditions in her apartment. On December 26, 1980, Mr. Catogas or his lawyer wrote Ms. Lindsey's lawyer that the repairs sought had been effected. At the time of the hearing, the roof had been repaired, but the refrigerator still did not work. Mr. Catogas explained that he had adopted a policy, on advice of counsel, of effecting emergency repairs only in the Lindsey apartment. The door was off the pump room for the swimming pool and the laundry room also lacked a door, on June 9, 1980. There was a wet spot in the ceiling of the laundry room and holes in the sheet-rock lining the walls. One of the plates in the drop ceiling in apartment No. 4, building No. 18257, was broken, and the baseboard required repair. The outside toilets near the pool were inoperable. The plumbing has since been repaired, but residents do not have access to these toilets because the doors have been locked since the repairs were effected. No screens were to be found on the east side of apartment No. 2 at building No. 18257, on the east and rear sides of apartment No. 1 in the same building, and at the kitchen window and on the east side of apartment No. 3, also in building No. 18257. The front and north screens were missing at apartments Nos. 2 and 3 in building 18251 and front and rear screens were missing in building No. 18255. There were roaches and rat droppings in some of the apartments Inspector Brown visited on June 9, 1980. At some point, an employee of respondent began exterminating pests at the complex. Chemicals (some diazo compound) and equipment are kept on the grounds. Rogers Brown returned to Miami Garden West Apartments on August 16, 1980, on February 19, 1981, and on February 23, 1981. On his most recent visit, he once again found roaches and evidence of rodents; missing screens on the front and rear of building No. 18255; and that the drop ceiling in apartment No. 4, building No. 18257 remained unrepaired. According to Mr. Catogas, this has since been fixed. Mr. Brown also noted the still unmet need for repair to the baseboard in the living room of apartment No. 4 in building No. 18257. Respondent makes repairs from time to time and regularly exterminates the premises. Petitioner filed a proposed order which has been considered in the drafting of the foregoing findings of fact and substantially adopted, in substance. Proposed findings that have not been adopted have been rejected as inconsistent with or unsupported by the evidence or as irrelevant to the controversy.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent in the amount of $2,500. DONE AND ENTERED this 14th day of January, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1982.
The Issue The issues are whether Respondent's proposed award of four contracts to Intervenor Piper Fire Protection, Inc., is contrary to statutes, rules, policies, or the specifications, pursuant to Section 120.57(3)(f), Florida Statutes, and, if so, whether Respondent's identification of Intervenor Interstate Fire Systems, Inc., as the next lowest responsive bidder for one of the contracts is also contrary to statutes, rules, policies, or the specifications.
Findings Of Fact On February 21, 2002, Respondent issued an invitation to bid under the bid title, "Life Safety Equipment Inspection, Maintenance & Repair Services" (ITB). ITB Section 6.1 provides that Respondent will award a contract to the "responsive, responsible bidder" with the lowest bid; thus, the ITB does not contain business criteria on which responsive bids of responsible bidders are evaluated. ITB Section 2.1 states: "Life Safety Equipment inspection, maintenance and repair services have, in the past, been procured by the individual institution or facility or handled in-house." Electing to centralize the procurement of these services, Respondent "has decided to competitively bid for life safety equipment inspection services by region." ITB Section 2.3 discloses that Respondent intends to contract with a single vendor in each geographical region. ITB Section 2.2 states: The successful bidder/contractor shall provide Life Safety Equipment inspection, maintenance and repair services for the following items . . .: Annual Fire Alarm System inspection, testing, repair and maintenance. Fire Extinguisher six (6) year recharge and maintenance, twelve (12) year recharge and hydrostatic testing, and fire extinguisher replacement. Semi-Annual Kitchen Fire Suppression Systems testing, inspection and maintenance. Annual Sprinkler Systems inspection, repair and maintenance. Kitchen Exhaust Hood Cleaning on an as- needed basis with a minimum of twice annually. ITB Section 3.1.1 states that the selected contractor shall provide "Life Safety Equipment inspection, maintenance and repair services on the following equipment: Fire Alarm Systems, Kitchen Fire Suppression Systems, Sprinkler Systems and Kitchen Hoods." Section 3.1.1 requires that the "Contractor shall be licensed" under Chapter 633, Florida Statutes. ITB Section 3.7.3 states: "The Contractor's staff shall be fully trained and certified to perform the inspection, maintenance and repair of the equipment specified in this ITB. Acceptable proof of certification shall be in accordance with Chapter 633, Florida Statutes." Chapter 633, Florida Statutes, enumerates the responsibilities of the State Fire Marshall, Department of Insurance. In general, the State Fire Marshall has complete licensing and disciplinary jurisdiction over commercial suppliers of the activities described in subparagraphs 2-4 of paragraph 3, above. Under Section 633.70(1), the State Fire Marshall has nonexclusive jurisdiction over certain violations by alarm system contractors (as used in this recommended order, "alarm system contractors" shall include electrical contractors authorized to perform alarm system services). Although not addressed by the ITB, except possibly the first sentence of Section 3.7.3, alarm system contractors are under the licensing and disciplinary jurisdiction of the Electrical Contractors' Licensing Board, Department of Business and Professional Regulation, pursuant to, respectively, Sections 489.511 and 489.533(2), Florida Statutes. Licensing and disciplinary jurisdiction for the cleaning of kitchen exhaust hood systems in correctional institutions is unclear, but Respondent's Rule 33-20.4003(4)(a), Florida Administrative Code, adopts Rule 64E-11.008(4), Florida Administrative Code, which requires that kitchen ventilation systems comply with applicable fire prevention systems. In contrast to ITB Section 3, which describes the scope of services, ITB Section 4 sets forth the provisions governing the procurement process. ITB Section 4.3.6 states: "The Department will reject any and all bids not meeting mandatory responsiveness requirements. In addition, the Department will reject any and all bids containing material deviations." ITB Section 4.3.6.1 defines "mandatory responsiveness requirements" as "[t]erms, conditions or requirements that must be met by the bidder/contractor to be responsive to this ITB. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid." ITB Section 4.3.6.2 defines "material deviations" as: The Department has established certain requirements with respect to bids to be submitted by bidder/contractor. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this ITB's requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items or services bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. ITB Section 4.3.6.3 defines "minor irregularities" as: A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interests of the Department. ITB Section 4.3.9 states: All bidders planning to submit a bid must submit a letter stateing this intent by the date and time specified in the "Calendar of Events" (Section 4.2). This letter may be e-mailed, mailed, faxed or hand delivered; however, the bidder should confirm receipt of the notice of intent in order to ensure continued receipt of procurement materials. Section 4.3.10 adds that Respondent will mail addenda to the ITB "only to those bidders submitting a Letter of Intent to Bid." ITB Section 5.1 identifies four "mandatory responsiveness requirements." Section 5.1.1 requires the bidder to supply an original and one copy of the bid. Section 5.1.2 requires a duly authorized person to sign the supplemental bid sheets. Section 5.1.3 requires the bidder to sign and deliver an acknowledgement of contractual services. Section 5.1.4 requires the bidder to sign an acknowledged certification of six conditions: "business/corporate experience," "authority to legally bind the bidder," "acceptance of terms and conditions," "statement of no involvement," "nondiscrimination statement," and "unauthorized employment of alien workers statement." ITB Section 5.1.4.1 details the requirements of the "business/corporate experience" certification: A statement certifying that the bidder/contractor has business/corporate experience of at least three (3) years relevant to the provision of life safety equipment services as defined herein, within the last five (5) years. The reference in Section 5.1.4.1 to "life safety equipment services as defined herein" is not to an explicit definition of such services in the ITB. A restatement of Section 5.1.4.1 in the attachments omits "as defined herein." ITB Section 1.6 defines "Life Safety Equipment Inspection, Maintenance and Repair Services" as: "The inspection, maintenance and repair of fire alarm systems, fire extinguishers, kitchen fire suppression systems, sprinkler systems and the cleaning of kitchen exhaust hoods." Petitioner and Intervenors timely submitted bids. Petitioner and Intervenor Piper Fire Protection, Inc. (Piper), submitted bids for all four geographical regions into which Respondent divided Florida. Intervenor Interstate Fire Systems, Inc. (Interstate), submitted a bid only for one geographical region. Petitioner and Piper timely submitted letters of intent to bid, but Interstate never submitted such a letter. Determining that Petitioner and Intervenors' bids were all responsive, Respondent selected Piper's bids for all four geographical regions as the lowest bids. Petitioner submitted the second-lowest bid for three regions and, for the fourth region, Petitioner submitted the third-lowest bid; Interstate submitted the second-lowest bid for this region. Petitioner timely submitted its notice of intent to protest and written protest. Petitioner and Intervenors have standing to participate in this case. Petitioner contends that Piper's bid, which includes an executed certificate of business/corporate experience, was not responsive because Piper lacked the requisite business/corporate experience. Petitioner contends that Interstate's bid was not responsive because Interstate failed to submit a letter of intent to bid. For three of the last five years, Piper presents the requisite experience only in sprinkler systems, not in fire alarm systems, fire extinguishers, or kitchen fire suppression systems. By contrast, Petitioner, which has been in the fire- safety business for over a century, has the requisite experience in all of these items. As used in ITB Section 5.1.4.1, the "provision of life safety services as defined herein" requires consideration of the definition, at ITB Section 1.6, of "life safety equipment inspection, maintenance and repair services" as the "inspection, maintenance and repair of fire alarm systems, fire extinguishers, kitchen fire suppression systems, sprinkler systems and the cleaning of kitchen exhaust hoods." Obviously, Section 1.6 applies the activities of inspecting, maintaining, and repairing only to fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems. Not only does it not make sense to inspect, maintain, and repair the "cleaning of kitchen exhaust hoods," but ITB Section 3.1.6 limits the scope of work for kitchen exhaust systems to cleaning. The scope of services for kitchen exhaust hoods is thus considerably narrower than the scope of services for the other items. Kitchen exhaust hoods differ from the other items in another important respect. Although, among these items, only the kitchen exhaust hood is a significant source of fire, the licensing regime imposed on the inspecting, maintaining, and repairing of the other items is considerably more elaborate than the licensing scheme imposed upon the cleaning of kitchen exhaust hoods--likely due to the relative degrees of difficulty involved in the two sets of tasks. As confirmed by the testimony of its witness responsible for preparing the ITB, Respondent did not intend to allow a bidder with three-of-the-last-five years' experience in cleaning kitchen exhaust hoods to satisfy this responsiveness criterion solely on the basis of this experience. A close reading of the ITB supports this intention. As noted above, the language of the ITB and common sense justify different treatment for the cleaning of kitchen exhaust hoods than for the inspecting, maintaining, and repairing of the fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems. Perhaps most importantly, the responsiveness criterion addresses only life safety equipment. Fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems are examples of equipment whose sole purpose is life safety. The purpose of a kitchen exhaust hood is not life safety, but kitchen ventilation. A clean kitchen exhaust hood eliminates a source of fire, but is not, in itself, a form a life safety equipment. The heading of Section 1.6 describes the inspecting, maintaining, and repairing of fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems; the cleaning of kitchen exhaust hoods appears to have been an addition--perhaps a late one--by someone who gave little thought to the effect of this apparently innocuous clause on the grammar or title of Section 1.6 and, thus, the meaning of Section 5.1.4.1. Even though the ITB precludes a bidder's reliance on cleaning kitchen exhaust hoods to meet the criterion of business/corporate experience, the more difficult question remains whether a bidder must present experience across the entire range of remaining items, or whether a bidder may present experience limited to one or fewer than all of the remaining items. As noted above, by regulatory regimes, a line of possible demarcation exists between fire alarm systems, on the one hand, and fire extinguishers, kitchen fire suppression systems, and sprinkler systems, on the other hand. Additionally, the fire-alarm system is a detection system, and the remaining items are fire-fighting devices or systems. However, Piper's sole qualifying experience is in one of the fire-fighting systems, so this case does not directly raise the question of the sufficiency of otherwise-qualifying experience in only a fire-detection system. Section 5.1.4.1 speaks in a general tone. First, the actual requirement is in services--the services here are inspecting, maintaining, and repairing. Second, the extent of the qualifying experience is left open. During the qualifying three years, the bidder needs only "experience." The ITB does not require exclusive experience, nor does it require even substantial experience. Arguably, part-time experience would suffice. Third, the ITB does not qualify the kind of "life safety equipment" for which service experience is required. Given the tone of the relatively relaxed responsiveness requirement, the Administrative Law Judge chooses "any" rather than "all" as a fairer word to precede "life safety equipment." (The close linkage among inspecting, maintaining, and repairing, as compared to the loose linkage among fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems, strongly suggests that the meaningful distinction is not among the types of services, but rather among the types of equipment receiving services.) The fairest reading of the ITB thus allows a bidder to satisfy the responsiveness criterion with qualifying experience in only sprinkler systems, as Piper has done. Although it is unnecessary to address the contention regarding Interstate, the requirement of filing a letter of intent to bid was clearly to assure that the prospective bidder would receive copies of bid materials, such as addenda. The testimony of Petitioner's witness that Petitioner's "knowledge" that Interstate, a strong competitor, was not going to submit a bid allowed Petitioner more latitude in setting a price is outweighed by the evidence of the purpose of this requirement, as set forth in the ITB and the deposition testimony of one of Respondent's witness, as well as the lower bid of Piper.
Recommendation It is RECOMMENDED that the Department of Corrections enter a final order dismissing the bid protest of Petitioner and awarding the contract to Piper. DONE AND ENTERED this 7th day of August, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2002. COPIES FURNISHED: Michael W. Moore, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Don O'Lone, Business Manager Piper Fire Protection, Inc. Post office Box 9005 Largo, Florida 33771 Susan P. Stephens, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Karen D. Walker, Esquire Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302 Michael A. Wester Interstate Fire System, Inc. 1451 South Monroe Street Tallahassee, Florida 32301
The Issue This matter began when Respondent, a certified air conditioning contractor, was charged by Petitioner in an administrative complaint with violation of Section 489.129(1)(m), Florida Statutes, through the commission of gross negligence, incompetence, or misconduct in connection with a certain job undertaken by the air conditioning business for which Respondent was responsible as the qualifying agent. Respondent requested a formal administrative hearing. This proceeding followed. At hearing, Petitioner presented testimony of two witnesses and six evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, and three evidentiary exhibits. Petitioner was granted leave to submit a post hearing exhibit no later than March 3, 1989. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from Respondent by the required deadline or at the time of the preparation of this recommended order. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent is Steven E. Taucher, a certified air conditioning contractor and the qualifying agent for Discount Air Conditioning & Heating Services, Inc., at all times pertinent to these proceedings. He has been licensed by Petitioner since 1985 and holds license CA-CO36835. His address of record is Tampa, Florida. In May of 1987, Janet Daniels contracted with Respondent's company for the installation in her home of a heat pump system. The system was to consist of one supply duct and a filter back return; a three ton condenser heat pump; a three ton air handler; a 3 ton coil; and a heat strip, thermostat and outdoor slab. The unit was to fulfill heating and cooling functions. Installation work was to be completed in a "substantial and workmanlike manner"; using existing ductwork and electrical connections. Upon execution of the written agreement, Daniels paid Respondent $2,000. A sales rebate of $525 was also signed over to Respondent by Daniels, leaving a total owed to Respondent of $125. This amount was to be paid by June 30, 1987. Daniels never paid this final sum to Respondent because she was not satisfied with his work and eventually had to pay another contractor $420 to make certain repairs to the system. Respondent, by his own admission, failed to timely pull the permits for the project; however, he did install the system, connecting it to existing ductwork and electrical connections as specified in the contractual agreement. Within two and a half hours after installation, the temperature gauge reflected that the unit was not cooling the Daniels' house to the desired 76 degree thermostat setting. Respondent informed Daniels that the unit's capacitor wasn't functioning. Respondent replaced the capacitor. The unit did not function properly and Respondent attempted other repairs at later dates varying from replacement of the thermostat to installation of a sump pump for removal of condensation from the unit. Daniels was still unable to get the unit to cool the residence to the desired thermostat setting. Further, there was a disparity in the temperature between rooms in the residence. On July 23, 1987, Respondent, accompanied by a factory representative from the manufacturer of the heat pump system, returned to the Daniels home. It is undisputed by the parties that the factory representative found that a portion of the unit, the vertical air handler, was not level and not well mounted and, as a result, was poorly installed. He further determined that the unit contained an excess amount of freon, a refrigerant gas. Respondent maintains that he performed the installation task strictly in accordance with the contract between the parties. It is his position that the installation of the air handler without a new wooden support base under it or replacement of the leaking existent return air plenum was in compliance with the parties' agreement to use existing ductwork. Respondent's position as to compliance with contractual terminology is supported by testimony of Petitioner's expert that the meaning within the trade of the terminology "use of existing ductwork" ordinarily includes the existing return air plenum as part of that ductwork. However, testimony of Petitioner's expert also establishes that Respondent's failure to realize and advise Daniels that the existing ductwork was obviously inadequate and might not permit the system to function effectively, demonstrated incompetence with regard to his ability to properly design and install a relatively simple system. The overall sloppiness of the workmanship in the system installation also reflects incompetence on the part of Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19)(b), Florida Administrative Code. RECOMMENDED this day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5193 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-6. Addressed and adopted in substance. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33617 Steven E. Taucher Post Office Box 271581 Tampa, Florida 33688 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
